Rights of audience and planning

A local authority executive member (who was not a planning committee member) did not ‘pollute the well’ of a contentious planning decision by making representations at a meeting. This was despite the finding by an independent investigator that the councillor in question had breached the council’s Code of Member Conduct by bringing his office or authority into disrepute.

So found Cranston J on 21 February 2014 in Bishop’s Stortford Civic Federation v East Hertfordshire District Council and others ([2014] EWHC 348 (Admin)), in a case which he said ‘raises some important issues about the lawful operation of local government and the role of the courts’.

Background

Following discussions with a proposed developer, Henderson Global Investors Limited (Henderson) the council agreed a land deal, subject to planning consent, whereby council land would be transferred to Henderson for development in consideration of a payment of £2,350,000, plus an overage payment of 10% if the profit on the gross development value exceeded 15%.

At the council meeting Cllr Tindale – the executive member in question, who led on the development negotiations and whose responsibilities included finance – said that the council’s property arrangements were not a matter for public consultation, but this would become more relevant when specific development proposals were submitted.

At the subsequent planning committee, Henderson had formally applied for planning consent to demolish existing buildings and construct a mixed-use development comprising, among other things, retail, leisure, hotel, food and drink, residential community and car parking. There were over 200 members of the public present and proceedings were ‘lively, with interruptions and heckling from the floor’. As well as contributions from committee members, where both ward councillors spoke against the development, those opposing and in favour of the proposals were invited to address the committee.

Cllr Tindale also did so ‘to outline for the benefit of new members of the committee the agreement the council had reached in principle with Henderson in 2009’. In the course of his address he indicated that it would be ‘morally bankrupt’ to renege on the in-principle agreement already reached, since this would undermine the decision in favour already made by the full council.

He also pointed out that his aims had included putting the council’s finances on a firmer footing, that the locality was losing out because of better retail facilities in neighbouring towns, and that if Henderson withdrew, development would still take place (possibly housing).

The committee – all members of which had received training about the need to take only material planning considerations into account when making decisions – voted 6-5 in favour of granting outline planning consent, subject to completion of a section 106 agreement.

After the meeting Maria Memoli (an experienced local authority solicitor and Law Society Council member) was appointed to investigate three complaints against Cllr Tindale regarding his representations to planning committee. As indicated, she concluded that since there was nothing in the council’s constitution or other instruments allowing him to attend the meeting, he did not have the right to do so, since he was not a member of the committee or a ward member.

Instead he was lead member for the negotiations with Henderson and the planning applications concerned council land (even if the council was not itself the applicant).

In her view: ‘[It] was unwise on his part to attend and address the planning committee, and as such can reasonably be seen by members of the public and others, as bringing his office and that of his authority into disrepute in breach of paragraph 5 of the Council’s Code of Conduct.’

Subsequently, following the government’s issue of the National Planning Policy Framework (NPPF), which replaced the planning policies used in the Henderson applications for outline permission, Henderson submitted two additional documents to the council. The head of planning considered the NPPF and concluded that the balance could not have changed other than towards supporting the development proposals.

His report was therefore placed on the council’s file but not uploaded on to its website. Following signing of the section 106 agreement planning consent was granted for the redevelopment of the site.

The planning decision was challenged by the Bishop’s Stortford Civic Federation on two grounds. The first was that, by reason of Cllr Tindale’s remarks, the position he held, how he came to speak and the influence those statements may have had, he ‘polluted the well’ of the determination. The second concerned whether the council acted unfairly in granting planning permission by failing to give the federation or others the opportunity to comment on the additional documents submitted by Henderson after outline permission had been granted.

Court’s view

Cranston J (pictured) said he could not accept Maria Memoli’s conclusion that because there was nothing in the constitution or other documents of the council expressly allowing Cllr Tindale to attend and address the committee, he had no right to do so. That, said Cranston J, was not the law. On the contrary ‘the law is that, unless there is an express provision in the Council’s constitution or other documents preventing attendance, any councillor can, with the committee’s permission, in principle attend and address it’.

He distinguished R (Richardson) v North Yorkshire County Council [2003] EWCA Civ 1860, where the Court of Appeal had found that a councillor with a prejudicial interest (under the law as it then was) could not ‘simply by declaring that he attends in his private capacity…  divest himself of his official capacity as a councillor’. In this case Cllr Tindale had no personal (or in current terms) ‘disclosable pecuniary interest’.

His lordship also found no ‘pollution of the well’ by Cllr Tindale who, given the fact that a mixed use development for the site was ‘on the cards’ did not mislead the committee.

As to the issue of the effect of Cllr Tindale’s intervention on the outcome of the planning decision, Cranston J was ‘simply not persuaded’ that relevant remarks had any influence on committee members. In his view there was ‘no reasonable basis for concluding that, despite… clear direction in the planning officer’s report, the members would nonetheless have done something else’.

Furthermore, the majority councillors were experienced and all members ‘had received training which emphasised that they should always focus on planning matters only in their decision making’. And the ‘cut and thrust of political debate is not conducive to refined textual analysis’.

The judge also referred to fundamental issues relating to the appropriateness of courts delving too deeply into the debates of democratically elected politicians for ‘excessive forensic analysis of political debate has an appearance of fettering the democratic process’.

As to ground two, there was no unfairness since there had been no material change arising from the policy changes. Any unfairness would have been ‘entirely technical’ and ‘English law does not recognise a technical breach of natural justice’.

Cranston J also referred to the previous finding that Cllr Tindale had been in technical breach of the code of conduct through his relevant representations, remarking that in the circumstances ‘a large question mark hangs over that finding’.

Comment

This is an interesting case on elected members’ rights of audience in planning determinations (where there is no disabling personal interest) and also caution about excessive analysis fettering the democratic process.

Dr Nicholas Dobson is a consultant at Freeth Cartwright